What is Harvard Law Review’s new gender-based affirmative-action membership policy?

The Harvard Crimson reports that the Harvard Law Review “has expanded its affirmative action policy to include gender as a criteria in its editor selection process.” (HT: How Appealing) I hope that the editors know what they are doing, but I fear that they do not. In fact, the new policy may not be a “policy” at all, in that it apparently specifies only that gender ought to be taken into account in some unspecified way in making membership decisions.

I hesitate to write because there may have been changes since I served as an editor on Volumes 114 and 115. But the affirmative action policy described in the Crimson Article now seems very much like the one in place then. According to the article, the prior policy was to set aside a certain number of slots to be filled by a “discretionary committee,” with the committee members taking into account “applicants’ grades, writing test scores, race, and any physical disabilities.” The way that these were to be taken into account was unspecified. And it appears that this remains unspecified. The new policy appears simply to charge the discretionary committee to “consider gender in addition to its existing criteria.”

I was a member of the discretionary committee for Volume 115. Our direction was just to take the various factors into account and then exercise our discretion. That is it. There were some very easy calls, such as applicants who missed the cut-off by a hair’s breadth mathematically. But there was no guidance at all for the tougher calls. The “policy” was nothing more than a list of factors.

At least as of Volume 115, the only people who knew what role various factors played in membership decisions for any given year were the members of that year’s discretionary committee (and even they did not know the identities of individuals selected through that process because everything was done through an anonymous numbering system). As far as the rest of the review was concerned, the committee was a black-box mechanism whose only inputs were a small number of editors and a list of factors for them to “consider” in some unspecified way. The trade-offs made each year were unknown, even to the incoming members of the discretionary committee. If that structure remains the same, then there is no way to track what effect the existing affirmative action policies are having. And if there is no way to track that, there is no way to know what effect a change to the policies would have. Nor is there any way to know when the policies should end.

The Crimson quotes the incoming HLR President as saying that “it’s too soon to tell what impact the policy will have.” Unless the law review has some mechanism in place to provide accountability for how the discretionary committee exercises its discretion, however, the passage of time will not reveal too much about the effect of the policy. It’s a safe prediction that the number of female editors will drift upward and that some kind of mushy quota will result. But nobody will know what trade-offs the discretionary committee is making with the discretion it is charged with exercising. That is why I fear the editors do not know what “policy” they are adopting in adding gender to the discretionary committee’s list of factors to consider.

As Orin Kerr writes at Volokh Conspiracy, a policy like this has long been debated. The inability to know how the policy would function and the lack of a clearly articulated goal to be achieved by the policy have always seemed to me like good arguments against adopting such a policy. Apparently this year’s editors have found some way of overcoming those arguments.

(It should go without saying, but I should probably add that I would welcome factual corrections about the nature of the policies now in effect. In particular, if there is some kind of assessment or accountability mechanism in place, I would love to hear about it.)

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Your comment focuses on the ambiguous *manner* in which gender and other factors play into the decisions, but you don’t comment on the *intent*.

Does the policy at least clarify the purpose of considering race, gender, disability, etc., or is it left to the discretion of the discretionary committee to determine the purpose? Clearly the intent is to support underrepresented or historically disadvantaged groups, and no one expects the consideration of these factors to be abused so as to exclude these groups, but It would be good for the Law Review to indicate whether the intent is to use gender info to reduce gender bias in editing or whether it is to compensate for past gender bias by creating an opposite present bias. Are they to use race to support an editorial composition more consistent with the populace, or to make up for historical prejudice, or to compensate for present socio-economic disadvantage? If we’re trying to reflect a populace, is it the U.S. populace, the Cambridge, MA populace, or Harvard Law student populace?

All good questions. Its important to be circumspect because I am working off of first-hand experience that is now a decade old, coupled with a single, seemingly reliable newspaper report. If there has been some clarification of the purpose, I’m not aware of it. The old way, as I remember it, was that the use to which these variables were to be put was left to the discretionary committee. There were multiple purposes, some related to grades and competition scores, others related to race and physical disability. The anonymity of the process, though, means that the purpose served has to be one that can be advanced by selection based on a small number of variables: grades, competition score, race, physical disability, and now gender. Because of the constraints imposed by anonymity, the discretionary committee cannot make deep individualized comparisons.